Citation Nr: 0215773
Decision Date: 11/05/02 Archive Date: 11/14/02
DOCKET NO. 95-05 225 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for hypertension.
(The issue of entitlement to service connection for defective
vision of the left eye will be addressed in a separate
decision).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Maureen A. Young, Associate Counsel
INTRODUCTION
The veteran had served on active duty from June 1947 to
September 1971, when he retired from the United States Army.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a September 1994 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas, which, in pertinent part, denied the veteran's
claim of entitlement to service connection for hypertension.
He subsequently perfected a timely appeal regarding that
issue.
It should be noted that the Board is undertaking additional
development with respect to the claim of entitlement to
service connection for defective vision of the left eye
pursuant to authority granted by 38 C.F.R. § 19.9(a)(2)
(2002). When it is completed, the Board will provide notice
of the development as required by Rule of Practice 903, 38
C.F.R. § 20.903 (2002) After giving the notice and reviewing
any response to the notice, the Board will prepare a separate
decision addressing this issue.
FINDINGS OF FACT
1. The preponderance of the evidence demonstrates that
hypertension was not incurred in or aggravated by service,
nor is such disability etiologically related to service.
2. Hypertension was not manifested during service or within
one year after the veteran's retirement from active service.
CONCLUSION OF LAW
Hypertension was not incurred in or aggravated by service.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West
1991 & Supp. 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
In a report of medical examination completed upon the
veteran's entry into service in June 1947, it was noted that
his blood pressure was 140/76. In February and March 1949
his vascular system was reported as normal. In June 1950 his
blood pressure was found to be 116/74, in June 1957 his blood
pressure was found to be 126/70, and in February 1962 his
blood pressure was found to be 110/80.
In June 1968 the veteran was seen at the general dispensary
with complaints of right thumb numbness for the previous
three days. It was noted that he had experienced tightness
of the chest one-week before. His blood pressure at that
time was found to be 140/100. In July 1968 his blood
pressure was reported to be 120/100, and while standing it
was 130/110. There were subsequent blood pressure readings
on that date which showed his blood pressure to be 120/80 and
110/76. In March 1970 his blood pressure was found to be
128/76. In June 1971, on examination for the purpose of
retirement from active duty, his blood pressure was found to
be 122/82, and in the report of medical history completed at
separation in June 1971 he indicated that he had no history
of high blood pressure.
In May 1993, the veteran filed a formal claim of entitlement
to service connection for several disorders, including high
blood pressure. He alleged to have received treatment for
his claimed hypertension disorder while in service, and after
service in 1982 at Parkland Memorial Hospital and St. Paul
Hospital. Authorization forms were submitted to the RO so
that medical records from these facilities could be obtained
on the veteran's behalf. The RO notified both facilities in
September 1994.
In addition, in September 1994 the RO denied the veteran's
claim of entitlement to service connection for hypertension,
on the basis that hypertension had not been shown in service
or manifested to a compensable degree within one year of the
veteran's discharge from service. The veteran timely filed
notice of disagreement and a substantive appeal as to that
determination.
Further, in September 1994, hospital reports were received
from Parkland Hospital, Dallas, Texas, which showed the
veteran had been hospitalized at that facility from February
20, 1981, to March 4, 1981. It was noted in the hospital
report that the veteran described the onset of angina one
week prior to admission to the hospital. He reported that he
had been walking around his house three days prior when he
experienced a tightening in his chest and diaphoresis. It
was noted that he had no prior history of heart disease or
hypertension. His blood pressure on admission was 164/100.
On further examination, his blood pressure remained 130-
110/70. It was thought that he had unstable angina and
possible hypertension. His discharge diagnoses in March 1981
included "hypertension - probably essential." Hypertension
was also indicated as the etiology of his organic heart
disease.
In a November 1994 rating decision and statement of the case
(SOC), the RO continued to deny the veteran's claim of
entitlement to service connection for hypertension. In his,
VA Form 9, substantive appeal, the veteran indicated that
there were medical records regarding his hypertension
disorder at the Point Mugu Naval Air Warfare Center, Weapon
Division.
VA medical records show that in May 1996 the veteran was
hospitalized at a VA facility with a diagnosis of colon
cancer. It was indicated in the record that he had a past
history of hypertension.
In an October 1996 rating decision and supplemental SOC
(SSOC) the RO continued to deny the veteran's claim. In a
written statement from the veteran received by the RO in
January 1997, he noted that after his release from the
military in the early 70's he had been treated for high blood
pressure at Oxnard Naval Base, in California. In August 1997
the RO requested a search for the veteran's records at Oxnard
Naval Base. A response was received from the Chief Records
Reconstruction Branch in October 1997 that a search of the
records on file failed to show an index for Oxnard Naval
Base.
In addition, in August 1997, the RO notified the veteran that
St. Paul Medical Center had not furnished the medical records
showing treatment he alleged he had received at that facility
in 1982. The veteran was requested to obtain the records
from St. Paul Medical Center and to submit them to the RO.
No medical records from that medical facility have been
received from the veteran or otherwise.
In May 1998 the RO notified the veteran that the service
department did not have an index for Oxnard Naval Base, and
inquired as to whether there was another name for that
medical facility or base. The RO also asked the veteran
whether he had, in his possession, any medical records from
Oxnard Naval Base. There was no response from the veteran to
this inquiry. In addition, in May 1998, the RO requested
medical records for the veteran from Point Mugu Naval Air
Warfare Center. A response was received from the medical
records clerk at Point Mugu, to the effect that the
information requested for the veteran was not available at
Point Mugu. The information had been forwarded to the
National Personnel Records Center (NPRC) in St. Louis.
Records received from the NPRC, and included in the claims
file, do not include records for treatment of the veteran for
hypertension at Point Mugu.
II. Legal Analysis
A. Preliminary Matters - VCAA
During the pendency of this appeal, the President signed into
law the Veterans Claims Assistance Act of 2000 (VCAA), Public
Law No. 106-475, 114 Stat. 2096 (2000), which substantially
amended the provisions of chapter 51 of title 38 of the
United States Code and, among other things, eliminated the
requirement of a well-grounded claim and enhanced the
assistance to be afforded to claimants in substantiating
their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (now
codified as amended at 38 U.S.C.A. § 5103 (West Supp. 2002)).
VA has long recognized that the Department has a duty to
assist the veteran in developing evidence pertinent to his
claim. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.103(a)
(2001). Recent changes in law have amended the requirements
as to VA's development efforts in this, and other pending
cases, modifying and clarifying VA's duty to assist a
claimant in evidentiary development. See VCAA, supra. See
generally Holliday v. Principi, 14 Vet. App. 280 (2001). In
addition, VA has published new regulations to implement many
of the provisions of the VCAA. See 66 Fed. Reg. 45,620
(Aug. 29, 2001) (to be codified as amended at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, and 3.326(a)).
Judicial case law is inconsistent as to whether the new law
is to be given retroactive effect. The Court has held that
the entire VCAA potentially affects claims pending on or
filed after the date of enactment (as well as certain claims
that were finally denied during the period from July 14,
1999, to November 9, 2000). See generally Holliday v.
Principi, supra; see also Karnas v. Derwinski, 1 Vet. App.
308 (1991). That analysis would include cases that had been
decided by the Board before the VCAA, but were pending in
Court at the time of its enactment. However, the United
States Court of Appeals for the Federal Circuit has recently
held that only section 4 of the VCAA (which eliminated the
well-grounded claim requirement) is retroactively applicable
to decisions of the Board entered before the enactment date
of the VCAA, and that section 3(a) of the VCAA (covering
duty-to-notify and duty-to-assist provisions) is not
retroactively applicable to pre-VCAA decisions of the Board.
See Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002);
Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002) (stating
that Dyment "was plainly correct").
Although the Federal Circuit appears to have reasoned that
the VCAA may not retroactively apply to claims or appeals
pending on the date of its enactment, the Court stated that
it was not deciding that question at this time. In this
regard, the Board notes that VAOPGCPREC 11-2000 (Nov. 27,
2000) appears to hold that the VCAA is retroactively
applicable to claims pending on the date of its enactment.
Further, the regulations issued to implement the VCAA are
expressly applicable to "any claim for benefits received by
VA on or after November 9, 2000, the VCAA's enactment date,
as well as to any claim filed before that date but not
decided by VA as of that date." 66 Fed. Reg. 45,629 (Aug.
29, 2001). Precedent opinions of the chief legal officer of
the Department, and regulations of the Department, are
binding on the Board. 38 U.S.C.A. § 7104(c) (West 1991).
Therefore, for purposes of the present case, the Board will
assume that the VCAA is applicable to claims or appeals
pending before the RO or the Board on the date of its
enactment.
The VCAA contains a number of new provisions pertaining to
claims development procedures, including assistance to be
provided to claimants by the RO, and notification as to
evidentiary requirements. We have carefully reviewed the
veteran's claims file, to ascertain whether remand to the RO
or other development is necessary in order to assure
compliance with the new legislation. We note that the
development of medical evidence appears to be complete to the
extent possible. By virtue of the SOC and the SSOC provided
by the RO, the veteran has been given notice of the
information and/or medical evidence necessary to substantiate
his claim. Likewise, he has also been given notice that VA
has a duty to assist him in obtaining any evidence that may
be relevant to his appeal; and VA has in fact assisted him.
See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (noting
that VA must communicate with claimants as to the evidentiary
development requirements of the VCAA). In this regard, the
Board notes that, in a September 1994 letter to the veteran,
the RO explained the best type of evidence he could submit in
support of his claim, and, in the November 1994 SOC and the
October 1996 SSOC, he was advised that VA had a
responsibility to obtain records that he would identify on
his behalf.
The RO has attempted to obtain the evidence identified by the
veteran relative to his claim. However, there was no
response to the request made to the St. Paul Medical Center
in Dallas, Texas, for the veteran's medical records. The
veteran was notified of the lack of response from that
facility, and was asked to obtain the records. To date, he
has not submitted any such records. The RO also attempted to
obtain medical records from Oxnard Naval Base and Point Mugu
Naval Air Warfare Center as identified by the veteran to be
relative to his claim; however, the service department had no
index for Oxnard Naval Base, and the veteran failed to
provide any additional information to further identify this
Naval Base. The response from the records clerk at Point
Mugu informed the RO that the information requested had been
forwarded to the NPRC. Documents received from the NPRC,
however, are devoid of any records from Point Mugu with
regard to treatment of the veteran for hypertension.
Although the above records have not been associated with the
veteran's claims folder, the Board notes that the veteran had
been advised in writing of VA's responsibility to obtain
records on his behalf, and of his ultimate responsibility for
providing the evidence. In summary, we find that VA has
satisfied its duty to assist the veteran in apprising him as
to the evidence needed, and in obtaining evidence pertaining
to his claim to the extent possible, under both former law
and the new VCAA. 38 U.S.C.A. § 5107(a) (West 1991); Pub. L.
No. 106-475, § 3(a), 114 Stat. 2096, 2096-98 (2000) (now
codified as amended at 38 U.S.C.A. §§ 5103 and 5103A (West
Supp. 2002)). The Board therefore finds that no useful
purpose would be served in remanding this matter for more
development. Such a remand would result in unnecessarily
imposing additional burdens on VA, with no benefit flowing to
the veteran. The Court has held that such remands are to be
avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en
banc), vacated on other grounds sub nom. Winters v. Gober,
219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430
(1994). In fact, the Court has stated, "The VCAA is a
reason to remand many, many claims, but it is not an excuse
to remand all claims." Livesay v. Principi, 15 Vet. App.
165, 178 (2001) (en banc).
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 1991).
When there is an approximate balance in the evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107 (West Supp. 2002); 38 C.F.R. § 3.102 (2001);
VCAA § 4, 114 Stat. 2096, 2098-99 (2000) (codified as amended
at 38 U.S.C.A. § 5107(b) (West Supp. 2002)).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court
held that a veteran need only demonstrate that there is an
"approximate balance of positive and negative evidence" in
order to prevail. The Court has also stated, "It is clear
that to deny a claim on its merits, the evidence must
preponderate against the claim." Alemany v. Brown, 9 Vet.
App. 518, 519 (1996), citing Gilbert.
B. Service connection for hypertension
In general, applicable laws and regulations state that
service connection may be granted for disability resulting
from a disease or injury incurred in or aggravated by
military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §
3.303. That a condition or injury occurred in service alone
is not enough; there must be disability resulting from that
condition or injury. See Rabideau v. Derwinski, 2 Vet. App.
141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223
(1992). Service connection may also be granted for a disease
first diagnosed after discharge, when all of the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
Service connection may also be granted for chronic
disabilities, such as hypertension, if such is shown to have
been manifested to a compensable degree within one year after
the veteran was separated from service. 38 U.S.C.A. §§ 1101,
1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.
Having reviewed the complete record, and for the reasons and
bases set forth below, the Board concludes that the
preponderance of the evidence is against finding that the
veteran's hypertension was incurred in or aggravated by
service.
The Board notes that the veteran's service medical records
are negative for any diagnosis of hypertension during
service. Although several blood pressure readings were
obtained while the veteran was on active duty, these readings
show that his diastolic pressure was not found to be
predominantly 90 mm. or greater, and that his systolic
pressure was not found to be predominantly 160 mm. or
greater. Pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101
(2001), the term hypertension means that the diastolic blood
pressure is predominantly 90 mm. or greater, and isolated
systolic hypertension means that the systolic blood pressure
is predominantly 160 mm. or greater with a diastolic blood
pressure of less than 90 mm. Under these criteria, the
veteran's in-service blood pressure readings do not support a
finding that he had hypertension during service.
The Board has also reviewed the veteran's post-service
treatment records. Medical records from Parkland Hospital
show the veteran was diagnosed with hypertension in 1981.
Although these records confirm that the veteran was diagnosed
with hypertension, there is no medical evidence associating
his current diagnosis of hypertension with his military
service. The Board further finds that there is no evidence
that the veteran's hypertension became manifest to a degree
of 10 percent within one year after his retirement from
service. 38 C.F.R. §§ 3.307, 3.309. As indicated in the
Factual Background, above, the earliest evidence suggesting
that the veteran might have hypertension was a notation in
the 1981 hospital records which noted that he was thought to
have "possible hypertension," and a discharge diagnosis of
"Hypertension - probably essential." This record is dated
more than nine years after the veteran's separation from
service. There is no medical evidence dated prior to that
date suggesting that he had been diagnosed with hypertension.
In light of the aforementioned evidence, which shows that in-
service blood pressure readings were within normal limits,
and that the first suggestion of hypertension does not appear
in the record until more than nine years following the
veteran's retirement from active service, the Board concludes
that the preponderance of the competent and probative
evidence is against finding that the veteran's claimed
hypertensive disorder was incurred in or aggravated by
service.
The Board appreciates the sincerity of the veteran's belief
in the merits of his claim. However, it is well established
that, as a layperson, he is not considered capable of
rendering an opinion, no matter how sincerely, that he
developed hypertension during service. See Routen v. Brown,
10 Vet. App. 183, 186 (1997) ("a layperson is generally not
capable of opining on matters requiring medical knowledge"),
aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir.
1998), cert. denied, 119 S. Ct. 404 (1998); Espiritu v.
Derwinski, 2 Vet. App. 492 (1992); Moray v. Brown, 5 Vet.
App. 211 (1993). As noted above, the veteran was examined at
for the purpose of retirement from active service and on
numerous occasions during service, and his blood pressure
readings were shown to be within the range of normal. In
fact, when he reported his own medical history at the time of
his medical examination for retirement, he indicated that he
did not have a history of high blood pressure. Moreover, it
was noted in the post-service Parkland Hospital report in
1981 that the veteran had no prior history of hypertension.
The Board has, of course, considered the possibility of
obtaining an additional medical examination and/or opinion
that specifically addresses the issue of whether the
veteran's hypertension disorder was incurred in service. See
38 U.S.C.A. § 5103A(d) (West Supp. 2002), calling for an
examination or opinion when necessary to make a decision on a
claim. However, as discussed in detail above, his
examinations during service and at retirement from active
duty repeatedly showed his blood pressure was normal. The
earliest evidence of hypertension does not appear in the
record until more than nine years following his retirement
from service. The veteran's statements regarding in-service
manifestations are clinically unsupported, contradicted by
the records, and, because he is a layperson, not reliable.
In light of this record, the Board believes that any opinion
obtained regarding a relationship between his military
service and his claimed hypertension disorder would be based
on sheer speculation, and, based upon this record and the
VCAA, is not necessary for the Board to reach a decision in
this case.
In conclusion, the Board concludes that the preponderance of
the evidence is against the veteran's claim of entitlement to
service connection for hypertension. The benefit sought on
appeal must accordingly be denied.
ORDER
Entitlement to service connection for hypertension is denied.
ANDREW J. MULLEN
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.